VALERIAN DONALD D CUNHA v. KOTILDA H SALIAN

by the defendant is directed against the order of remand in RA.13/O7 dated 113.2009 on the file of I Addl.Civil Judge (Senior Divn.) and CJM, Man galore.

2. Heard learned counsel on both sides and perused records supplementation thereto which reveals following contextual facts: a) Respondent-Smt.Kotilda H.Salian filed a O.S.591/04 seeking a prohibitory order in the nature of order of injunction to restrain the appellant-Valerian Donald D’cunha from cutting or removing standing timber or trespassing on the property described in the schedule. b) In support of the relief sought, she averred that the property described in the schedule was subject matter of proceedings before the Land Tribunal and in pursuance to the order of the Land Tribunal dated 27.3.2003, acquired the property and has been in physical possession and enjoyment thereof. She alleged, appellant herein who is living in the neighbourhood, is inimical towards her and has been harassing her; he owns property adjacent to the schedule property and with a view to make unlawful gain, he is attempting to trespass. c) On 27.10.2004, he along with his family members attempted to remove standing timber and other agricultural produce but which she somehow averted. She further averred, contra claim, approached the Additional Director of Land Records (ADLR) for survey of the land who visited the spot to fix boundaries, but appellant threatened her of dire consequences consequent to which she lodged a report before the Bajpe police station seeking help. Thus she sought an order of injunction against him. d) Appellant-defendant entered contest through written statement and denied all the averments in the plaint. He questioned maintainability of the suit on the ground plaintiff had no manner of right, title and interest 4 nor she has acquired the schedule property by virtue of the order of the Land Tribunal under the deed of partition dated

3.3.2001 is incorrect. According to him, the claim before the Tribunal to grant her land was seriously contested by him. However, after the Tribunal registered her occupancy and granted her land, he questioned the same before the Appellate Tribunal and the issue is under consideration. He also denied physical possession and enjoyment of the same. Besides, he also averred, the land in question was bequeathed by the owner-Jerome D’cunha in favour of his brother vide registered will dated 17.6.1989. Jerome D’cunha was also genetically related to them as paternal unde. Thus by virtue of the will, defendant’s brother became legatee; he took ‘geni’ from his brother and is paying rent regularly to him in consideration of physical possession of the property. e) The other specific contention of the defendant was, he is in physical possession of the property in question under the transaction of ‘geni’ from his brother who acquired the property absolutely from Jerome D’cunha by virtue of the will dated 17.6.1989. He also claimed he has improved the land and has converted it into a fertile garden planting 35 coconut trees, 285 areca trees; he has also grown banana and other commercial constructed a house which is assigned No.1/216 (old No.2/139) and is living with his family therein. f) Based on the material propositions in the pleadings of the parties, the learned trial judge framed the following issues for consideration:

1. Whether the plaintiff proves that she has been in lawful possession and enjoyment of the plaint schedule properties as per the order of the land tribunal dated 27.3.2003 and 3.3.2001? partition

2. Whether the plaintiff proves the alleged interference by the defendant?

3. Whether plaintiff entitled for permanent injunction as prayed for?

4. What Order or Decree? and in the inquiry that ensued, parties led evidence. Plaintiff tendered evidence as PW1 and placed reliance on 22 documents including settlement deeds-Exs.P1 and P2, 6 partition deed-Ex.P3 and order of the Land Tribuinal-Ex.P4. Appellant-defendant on his part tendered evidence as DW1 and supported his case through the evidence of Herald D’Cunha-DW2 and Sylvester DW3. He placed reliance on 35 documents. g) Analyzing the evidence, learned trial judge opined plaintiff had made out a case and thus decreed the suit granting an order of injunction, restraining the appellant and any one claiming through him from interfering with the alleged possession of the plaintiff. Assailing it, appellant was in appeal in R.A.13/07 reiterating his plea of being in exclusive possession which appeal was allowed partly. Learned appellate judge while setting aside the judgment of the trial court in O.S.591/04, remanded the suit with a direction to frame issues with reference to pleadings of the parties and then dispose of the same in accordance with law. h) Appellant-defendant is aggrieved by that order.

3. Learned counsel for the appellant would submit, even though the appellate court has set aside the judgment and 7 decree of the trial court, it has seriously erred in directing the trial court to frame issues to decide the title of the parties when the suit was for bare injunction where no such inquiry was contemplated.

4. AppelIants counsel would submit, first appellate court has exceeded its jurisdiction in directing the trial court to frame additional issues and to record a finding thereon when the main relief in the suit was bare injunction. He, therefore, questioned the impugned order directing total remand and in terms of it, to decide the question of title.

5. Learned counsel for the respondents has supported the impugned judgment of the appellate court.

6. Keeping in mind the contentions of both sides, I have examined the impugned judgment. is not in dispute respondent had filed the suit for bare injunction in which no relief of declaration was sought. The trial court had decreed the suit granting order of injunction, whereas the appellate court considering the defense put forth by the appellant, has opined that the trial court additional issues to decide title , and placed reliance on the S judgment of this court reported in 1999(2) K.L.i. 548 wherein this court opined with reference to Order XIV Rule 1, C.P.C. and Section 12(2) of the Electricity Act, omission to frame relevant issues based on material propositions in the pleadings vitiates the finding. The trial and written statement and after hearing the parties, frame and record issues on which the right decision of the case depends. required to read the pleadings

7. No doubt such opinion is expressed by this court, but the appellate court has placed reliance, the question is whether it is applicable to the facts of this case. As seen from the reasoning of the appellate court in paragraph 17 of the judgment, it has taken note of multi-facet defense put forward by the appellant questioning the title of respondent-plaintiff. The appellate judge has also taken note of the dispute between the parties and the fact that the will as propounded by the defendant and therefore the decision as to right, title and interest of the parties with reference to the will has to be taken. on the basis of above facts and circumstances, learned appellate judge opined relevant issues have to be framed. It is quite clear learned () judge while hearing the appeal and placing reliance on the decision referred to above, has ignored the decision of the apex court in the case of ANATHULLA SUDHAKAR .vs. BUCHI REDDY (DEAD) BY LR5. & OTHERS (AIR 2008 SC 2033) wherein the apex court has laid down guidelines to be followed by the trial court and this decision leaves no scope for doubt that in a suit for bare injunction, if a shadow of is created on the right, title and interest of plaintiff, plaintiff has to be relegated to file a suit declaration of title..

8. In the instant case, it could be seen, plaintiff has relied on Form No.7 filed by her for grant of benefit under Section 77A of the Land Reforms Act to which she claims she is entitled. Therefore the question would be as to whether the plaintiff was in possession and cultivating the land prior to 1974. The provision intends to benefit those who being in occupation and cultivation, had not sought for regularization. It is not in dispute that the said issue is now under consideration the Appellate Tribunal constituted under the Act and civil courts jurisdiction is ousted. 10

9. If the will Plaintiff claims to be daughter of grantee of whereas appellant claims to be the brother of the legatee under the will. Thus, veracity of the will is in question. There is no dispute plaintiff and defendant claim to be descendants of Jerome. is proved, defendant’s brother will be the beneficiary of the legacy, and if it is not proved, plaintiff may have to establish physical possession. Therefore, is clear that a serious question of title has arisen in the case which cannot be gone into in a suit for bare injunction. Though the appellate court was right in setting aside the judgment of the trial court granting order it has committed a serious error in remanding the case directing the trial court to frame relevant issues to decide the question of title. injunction against the appellant,

10. For the reasons discussed above, I am satisfied the appeal must succeed. The judgment of the appellate court in R.A. .13/07 is set aside. The appeal is remanded to the appellate court to take it on board and decide it on merit by giving opportunity to both sides. However the appellate court is directed to consider whether the trial court could have recorded the finding of right, title and interest or title II of the parties in a suit for bare injunction in view of the decision of the apex court viz., AIR 2008 Sc 2033. The appeal shall be decided based on material already available on record and the limited scope of the suit for Injunction. • ‘. qye.. 7 VK/VGH